Partly allowed

Suresh v. State of Kerala

Kerala HC2 Nov 2020CRL.A/781/2005

Case brief

AI extract

What is this about?

High Court of Kerala allowed a partial criminal appeal in a dowry death case. The court affirmed the conviction of the first appellant but acquitted the second appellant as the deceased's suicide note contained no specific allegation against her, despite oral witness testimony.

What did the court decide?

Conviction and sentence of first appellant confirmed; conviction and sentence of second appellant set aside and she set at liberty.

Suresh Vs State of Kerala — Dowry and Cruelty | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942

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CRL.A.No.781 OF 2005

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AGAINST THE ORDER/JUDGMENT IN SC 172/2002 DATED 04-05-2005 OF ADDITIONAL DISTRICT COURT(ADHOC 2), THRISSUR

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APPELLANT/S:

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1 SURESH S/O.PANOLIC KRISHNAN, VADAKKUMMURI DESOM, PERINGOTTUKARA.

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2 BABY D/O. KRISHNAN W/O. ARAKATHI PARAMBIL NADARAJAN, EDATHIRINJI.

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BY ADV. SRI.C.P.UDAYABHANU

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. PUBLIC PROSECUTOR

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OTHER PRESENT:

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SRI.K.B.UDAYAKUMAR, SR.PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2020, THE COURT ON 02-11-2020 DELIVERED THE FOLLOWING:

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Crl.A. No. 781 of 2005

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P.V.KUNHIKRISHNAN, J.

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===================

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Crl.A. No. 781 of 2005

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=================== Dated this the 2^nd day of November, 2020

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J U D G M E N T

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Appellants are the 1^st and 3^rd accused in S. C. No. 172/2002 on the file of the Additional Sessions Judge, Fast Track Court-II, (Adhoc), Thrissur. The above case is charge sheeted by the Anthikkad Police Station alleging offences punishable under Section 304B read with Section 34 of IPC. Originally there were 3 accused. The 2^nd accused died pending trial. Therefore, the case against the 2^nd accused is abated.

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The prosecution case in brief is like this; the deceased in this case is one Beena. Beena's parents were at Bhilai in connection with the job of her father. Her father died in 1971. Thereafter, the mother got the job. She also died in 1987. They have 3 children, namely Beena, Bindu and Biju. After the death of the mother the

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Biju, who is examined in this case as DW1, applied job under dying in harness scheme. Thereafter Beena and Bindu were residing in the house of PW3 along with PW1 and PW4. Beena married the 1^st accused in this case on 08.02.1993. At the time of marriage, 50 sovereigns of gold ornaments and a cash deposit of Rs.20,000/- along with a fridge was given to Beena by PW3 and PW1. The case of the prosecution is that, 3 months after the marriage Suresh her husband, his mother Devaki and his youngest sister Baby started to torture her demanding more dowry. The cruelty continued even after the birth of a daughter. On 21.09.1997 when Beena was pregnant she committed suicide by consuming an insecticide poison by name Furadan. PW1 gave Ext. P1 statement before the police and accordingly the case is registered. The allegation is that, the appellants and the 2^nd accused committed the offence under Section 304B read with Section 34 of IPC.

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To substantiate the case, altogether 18 witnesses

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Crl.A. No. 781 of 2005

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were examined by the prosecution. Exhibit P1 to P23 are the exhibits marked on the side of the prosecution. One witness was examined on the side of defense as DW1. MO1 to MO6 are the material objects.

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After going through the evidence and documents, the trial court found that, the appellant committed the offence under Section 304B read with Section 34 of the IPC. The appellants are sentenced to undergo rigorous imprisonment for seven years. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the 1^st and 3^rd accused.

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Heard the learned counsel for the appellants and the learned Public Prosecutor.

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The learned counsel for the appellant submitted that, even if the entire allegations against the appellants are accepted in toto, no offence under Section 304B of IPC is made out. According to the counsel, the ingredients to attract the offence under Section 304B of IPC is not made out in this case. General allegations to the effect that,

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Crl.A. No. 781 of 2005

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there was a demand for dowry is not enough to attract under Section 304B of IPC. The learned counsel submitted that, this Court should consider the fact that, the offence under Section 304B of IPC is a grievous offence, in which severe punishment is prescribed. Therefore, simply because there are some general allegation against the appellants about demand of dowry, this Court may not accept the same and confirm the conviction and sentence. The learned counsel also submitted that, Ext. P2 is the suicide note of the deceased. The learned counsel submitted that, if we go through Ext.P2 suicide note, actually the deceased exonerate the appellants in this case. Therefore, the learned counsel submitted that, Ext.P2 is actually supporting the appellants. The learned counsel also submitted that, there is only the interested testimony of PW1, PW3, PW4 and PW5 available in this case. There is no independent corroboration to these interested witnesses. Since the death of the victim is happened and that also happened in the matrimonial

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Crl.A. No. 781 of 2005

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house, there will be grievance to them. That may be the reason, why they are exaggerating silly things in this case. According to the counsel, even if the instances pointed out by these witnesses are accepted, those things will usually happen in a family life. The offence under Section 304B IPC is not made out in such circumstances.

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The learned Public Prosecutor submitted that, the evidence of PW1, PW3, PW4 and PW5 is enough to prove the offence under Section 304B of IPC. The learned Public Prosecutor submitted that, immediately after the suicide on the same day night PW1 gave Ext.P1 F.I statement, in which specific allegations are raised against the appellants, who are the 1^st and 3^rd accused. According to the learned Public Prosecutor, the F.I statement is actually corroborating to the suicide note of the deceased. The learned Public Prosecutor submitted that, there is nothing to disbelieve the evidence of PW1, PW3, PW4 and PW5.

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The point for consideration in this case is

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Crl.A. No. 781 of 2005

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whether the appellants committed the offence under

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Section 304B IPC.

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To attract the offence under Section 304B of IPC

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certain ingredients are necessary. The Section 304B IPC is extracted hereunder.

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“(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

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Explanation.—For the purpose of this subsection, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

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(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

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To attract the offence under Section 304 B IPC

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the prosecution has to prove that the death of a woman is caused other wise than under normal circumstances with in 7 years of her marriage and it is also to be proved that

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soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with demand for dowry. In explanation of Section 304B of IPC dowry is explained as the same meaning mentioned in Section 2 of the Dowry Prohibition Act. Section 2 of the Dowry Prohibition Act is extracted hereunder;

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“2 Definition of ‘dowry'. —In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly

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(a) by one party to a marriage to the other party to the marriage; or

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(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

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at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law

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( Shariat ) applies.

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Explanation II.— The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).”

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There is a presumption under Section 113B of

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Crl.A. No. 781 of 2005

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the Indian Evidence Act as to dowry death. Section 113B

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of the Evidence Act is extracted hereunder:

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“ 113B. Presumption as to dowry death . —When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code.”

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Explanation to Section 113B of the Evidence Act

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says that, dowry death shall have the same meaning as in Section 304B of IPC. The Section says that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Therefore, the prosecution should be able to prove prima facie that, there is cruelty or harassment in connection with a demand for

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dowry. There is also a presumption against the accused and it is to be rebutted by the accused. Of course the rebuttal of the presumption is not onerous as like the prosecution. The defence can rebut the presumption by preponderance of probabilities.

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The point to be decided in this case is whether there is demand for dowry. The Beena committed suicide on 21.09.1997. Ext.P1 statement is given by PW1 on the same day night. The FIR reached the Court on 22.09.1997, that is on the next day itself. PW1 clearly says that, there was demand for dowry and consequent harrassment from the side of the accused. PW1 narrated several instances in Ext. P1 F.I statement itself about the harassment from the side of the accused.

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Thereafter PW1 was examined before the Court. PW1 reiterated his version in Ext. P1 statement before the Court. Therefore, it cannot be said that, there is no harassment by demanding dowry from the side of the accused. It is to be noted that, PW1 in F.I statement stated

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that, accused No.1 to 3 harassed the deceased demanding dowry. The same version is given by PW1 while he was examined before the Court. Similar version was given by PW3, PW4 and PW5. But it is to be noted that, in Ext.P2 the suicide note of the deceased there is no specific allegation against the 3^rd accused, who is the 2^nd appellant in this case. A reading of Ext.P2 suicide note, it can be seen that, it is addressed to the 1^st accused. I perused the entire suicide note with great caution. In the suicide note, there is specific allegation against the 1^st accused. Ext.P1 F.I statement and the evidence of PW1, PW3, PW4 and PW5 corroborate the version in Ext.P2 suicide note, as far as the 1^st accused is considered. But it is to be noted that, the deceased in Ext.P2 clearly stated like this;

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“മമമോളുടടെ കമോരര്യതത്തില്‍ ഒന്നു ശ്രദത്തിക്കണണ, അവള്‍ക് ക ബുദത്തി വയ്ക്കുമവമോളണ വമല്ലേചത്തിയണ കുമഞ്ഞേചത്തിയണ എടന്റെ മമമോള്‍ക് ക ഒര തണലമോവണ എന്ന വത്തിശശമോസമുണക്ക്.”

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Here the " കുമഞ്ഞേചത്തി " is the 3^rd accused, who is the 2^nd appellant in this case. There is no allegation by the deceased against the 3^rd accused in Ext.P2 suicide note. It

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is true that, in the oral evidence of PW1, PW3, PW4, PW5 there is a specific allegation against the 3^rd accused, who is the 2^nd appellant herein. But as I stated earlier, there is no specific allegation against the 3^rd accused, who is the 2^nd appellant in this case in the suicide note. Ext.P2 suicide note is to be accepted in supersession to the oral evidences adduced by these witnesses. A perusal of Ext.P2 suicide note, it is clear that, there is harassment and cruelty from the side of 1^st accused. The learned counsel for the appellant submitted that there is no specific allegation in Ext.P2 to the effect that, there is demand for dowry. But I can not agree with the learned counsel for the appellant. A reading of Ext.P2 suicide note, according to me, everything can be inferred. The way she wrote that suicide note will show her sufferings in that house. She even stated that, if she died others will be happy and the 1^st accused can marry again. These statements can not be ignored by this Court, because this is from the mouth of the deceased. Moreover in the light of oral evidence of

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PW1, PW3, PW4 and PW5, according to me, there is clinching evidence against the 1^st accused to prove that, there was a demand for dowry from his side. But I can not agree with the lower court about the findings against the 3^rd accused, who is the 2^nd appellant in this case. It is true that, PW1, PW3, PW4 and PW5 stated that, there is a demand for dowry from the side of 3^rd accused also. But as I said earlier, in Ext.P2 there is no allegations against the 3^rd accused but actually the deceased trust the 3^rd accused that she will look after her child who is aged 3¹ /2 years at the time of her suicide. Therefore, I can not accept the case of the prosecution that, the 3^rd accused committed the offence under Section 304B of IPC. I don't want to repeat the entire evidence adduced by the PW1, PW3, PW4 and PW5 in this judgment. It is narrated in detail in the impugned judgment. I perused those oral evidence, in the light of Ext.P2. I am convinced that, there is clear evidence to show that, the 1^st accused, who is the 1^st appellant in this case committed the offence under Section 304B of

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IPC. But, evidence is lacking as far as the 3^rd accused is concerned to convict her under Section 304B of IPC or under any other Section in the light of the averments in Ext.P2 suicide note.

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Therefore, this criminal appeal is allowed in part.

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The conviction and sentence imposed on the 1^st appellant is confirmed.

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The conviction and sentence imposed on the 2^nd appellant, who is the 3^rd accused in this case is set aside. She is set at liberty. Bail bond, if any executed by her is cancelled.

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(Sd/-)

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P.V.KUNHIKRISHNAN, JUDGE

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Suresh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Suresh v. State of Kerala

Case brief

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What did the court decide?

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